Polen v. United States

41 App. D.C. 4, 1913 U.S. App. LEXIS 1966

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 3, 1913
• Docket: No. 2526
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

We perceive no uncertainty in the language used; nothing whatever that could mislead the defendants as to the offense with which they are jointly indicted.

It is not necessary to the charge of a joint assault by several persons, that they be specifically charged as acting “together and with each other.” Loggins v. State, 32 Tex. Crim. Rep. 358, 24 S. W. 408; 2 Bishop, New Crim. Proc. sec. 411.

The third count charges that the dangerous weapon with which the assault was committed was held in the hand of George Barton, one of the defendants. The verdict against Polen under this count was virtually set aside because he was adjudged guilty and sentenced under the fifth count only, which charged him with holding the brick.

The exception to the count, howeyer, was not well taken. The defendants were charged as principals. They were acting together, and the act of one was the act of each. The question is set at rest by sec. 908 of the Code

* [31 Stat. at L. 1337, chap. 854].

People v. Outeveras, 48 Cal. 19, 23; People v. Bliven, 112 N. Y. 79, 83, 8 Am. St. Rep. 701, 19 N. E. 638; State v. Hessian, 58 Iowa, 68, 70, 12 N. W. 77; Noble v. People, 23 Colo. 9, 13, 45 Pac. 376; Spies v. People, 122 Ill. 1, 101, 3 Am. St. Rep. 320, 12 N. E. 865, 17 N. E. 898, 6 Am. Crim. Rep. 570.

Under that section the indictment was unnecessarily elaborate.

The judgment is affirmed. Affirmed.

Sec. 908, D. C. Code, reads as follows: “Persons Advising, Inciting, or Conniving at Criminal Offense to be Charged as Principals. — In prosecution for any criminal offense, all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals, and not as accessories, the intent of this section being that as to all accessories before the fact, the law heretofore applicable in eases of misdemeanor only shall apply to all crimes, whatever the punishment may be.” — Reporter.